ANGELO RUGGIERO, ET AL., PETITIONERS V. UNITED STATES OF AMERICA
No. 88-374
In The Supreme Court Of The United States
October Term, 1988
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Second Circuit
Brief For The United States In Opposition
TABLE OF CONTENTS
Question presented
Opinions below
Jurisdiction
Statement
Argument
Conclusion
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-63a) is reported
at 846 F.2d 117. The district court's order granting a mistrial (Pet.
App. 66a-87a) is reported at 678 F. Supp. 46. The district court's
denial of petitioners' motion to bar a retrial (Pet. App. 88a-143a) is
not reported.
JURISDICTION
The judgment of the court of appeals was entered on April 26, 1988.
A petition for rehearing was denied on June 1, 1988. On August 4,
1988, Justice Marshall extended the time for filing a petition for a
writ of certiorari to and including August 30, 1988, and the petition
was filed on that date. The jurisdiction of this Court is invoked
under 28 U.S.C. 1254(1).
QUESTION PRESENTED
Whether a mistrial was justified in light of the high likelihood
that the jury had been compromised as a result of unlawful conduct
attributable to petitioners and the fact that only 11 jurors remained
after three were excused when they expressed doubts about their
impartiality.
STATEMENT
Petitioners Angelo Ruggiero, Gene Gotti, and John Carneglia were
charged in a 12-count superseding indictment with engaging in a
continuing criminal narcotics enterprise in violation of 21 U.S.C. (&
Supp. IV) 848. The indictment also charged them, together with
petitioners Edward Lino, Mark Reiter, Joseph LoPresti, Anthony
Moscatiello, Oscar Ansourian, Anthony Gurino, and Cesar Gurino, with
conspiracy to engage in racketeering, in violation of 18 U.S.C.
1962(d), and with other offenses involving narcotics trafficking and
the obstruction of a grand jury investigation. After seven and a half
months of trial, the trial court declared a mistrial (Pet. App.
66a-87a). The case was reassigned to another district judge, who
denied petitioners' motion for an order barring their retrial on
double jeopardy grounds (id. at 88a-133a). Petitioners took an
interlocutory appeal from that order, and the court of appeals
affirmed (Pet. App. 1a-63a).
1. Petitioners' trial began on June 1, 1987, before Judge Mark L.
Costantion and an "anonymous" jury. /1/ In October 1987, the United
States Attorney obtained information from confidential sources that
certain of the petitioners had identified members of the anonymous
jury for the purpose of influencing the verdict and that one juror had
been approached and compromised. Pet. App. 6a-7a. A grand jury began
an investigation of the matter (id. at 7a).
On December 8, 1987, while that investigation continued, juror Gary
Barnes was excused from the jury when it was discovered that he was
not a United States citizen. Two days later, Barnes received a phone
call from a co-worker, Melvin Rosenberg. Rosenberg pressed Barnes to
meet him. When the two got together later that day, Rosenberg told
Barnes that he was a long-time friend of petitioner Gotti and,
apparently believing that Barnes was still on the jury, suggested that
Barnes could have a BMW automobile if he told Rosenberg how the jury
was "feeling." See Pet. App. 7a-8a.
2. On Thursday, January 7, 1988, the government filed an ex parte
motion, accompanied by affidavits setting forth the government's
information regarding possible jury tampering and reports that four
petitioners had previously obstructed judicial and law enforcement
processes (Pet. App. 10a-11a). The motion asked the trial court to
question the members of the jury in camera concerning whether they had
been approached and then to conduct an evidentiary hearing into the
possibility of jury tampering. The following Monday, January 11, the
trial court examined each of the jurors in chambers outside the
presence of all counsel (id. at 11a). Except for one juror, who said
that someone at work knew that she was on petitioner Ruggiero's jury,
none of the jurors admitted to having been approached (id. at 12a).
Petitioners received the transcript of the jury voir dire and the
government's papers the next day (ibid.). On January 13, the trial
court began a hearing on the jury-tampering issue. Before it began,
the government and the defense requested that the hearing be closed to
the public (id. at 12a). When the court declined to rule on this
request, the government moved to sequester the jury (ibid.).
Petitioners opposed that motion (ibid.). Ultimately, the jury was
sequestered after the second day of the hearing (id. at 18a).
At the hearing, the court received an affidavit from an FBI agent
setting forth confidential information that petitioners Carneglia,
Gotti, Ruggiero, and Lino had taken measures to identify members of
the anonymous jury in order to fix the case (Pet. App. 73a).
According to the affidavit, those defendants had retained a private
investigator, William Sewell, to perform computer searches of the
license plate numbers of the cars in which the jurors were observed
(ibid.). After having a falling out with Sewell, these petitioners
used a different investigator (id. at 6a). The agent's affidavit
related that five jurors had been identified and one had been
approached and compromised (id. at 73a-74a).
Former juror Barnes testified at the hearing and identified Sewell
from a photograph as a person he had seen in the courtroom on several
occasions (Pet. App. 75a). /2/ He also testified about an encounter
with Sewell, who once followed him into a parking lot that was used by
several of the jurors (id. at 14a, 75a-76a).
Barnes worked at REFCO, a brokerage house that records its
employees' phone calls in the regular course of its business. At the
hearing, the government introduced a recording of the telephone call
placed to Barnes by Rosenberg, who also worked at REFCO (Pet. App.
77a, 14a-15a, 36a-39a). After Rosenberg identified himself, he asked
Barnes to meet him. When Barnes asked Rosenberg what he wanted to
talk about, the conversation continued (id. at 37a-38a):
Rosenberg: No, no, no, not on the phone. I want to talk to
you.
Barnes: You want . . . I tell you what, can I call you back
from the pay phone?
Rosenberg: I won't speak to you on the phone.
Barnes: Uh?
Rosenberg: I won't speak on the phone. This phone is taped
here.
Barnes saw Rosenberg later in the day. After again refusing to
explain what he wanted to talk about, Rosenberg took Barnes to a small
conference room and began to press him about "a case in Queens,"
asking Barnes "how the jury (was) feeling" (Pet. App. 16a). Barnes
said that he was not on jury duty in Queens, but rather in Brooklyn
(ibid.). Rosenberg persisted, Barnes continued to profess ignorance,
and the conversation continued (id. at 16a-17a):
Rosenberg said, "I am just going to give you initials, right,
and this case is about drugs. * * * Initial is G.G." Barnes
reiterated that he was not on a jury in Queens. Rosenberg said,
"Okay, okay, Gene Gotti," Again Barnes said, "I don't know what
you are talking about. I am not in Queens." Rosenberg said,
I have known this kid for 42 years. I have known his family.
We are good friends. I know his three daughters and
everything. I just want to know what the jurors are thinking.
I know this guy is probably going to get convicted, going to go
to jail . . . (T)he Government is probably going to try to put
this guy away for a long time because of his brother.
Rosenberg then mentioned a new BMW and asked (Barnes) what
kind of car he drove. Barnes said that he did not need a car
and walked out of the room.
Barnes testified that he had not told Rosenberg that he was serving
on the jury in the Gotti case (id. at 17a).
An FBI agent testified that he had questioned Rosenberg on December
22. Rosenberg admitted speaking with Barnes, but said it was "a
lark." He denied mentioning the initials "G.G." or the name "Gene
Gotti," and he claimed that he did not know Gene Gotti other than from
the newspapers (Pet. App. 8a, 79a). Rosenberg also told the agent
that he and Barnes were extremely close, like father and son (id. at
18a). Barnes testified, by contrast, that he and Rosenberg were not
close friends, but had only met casually in the halls and spoken once
or twice on the phone about orders at REFCO (id. at 15a). The
transcript of their earlier phone conversation reflected that Barnes
did not recognize Rosenberg until after the latter had identified
himself (id. at 77a). At the end of the interview, the agent served
Rosenberg with a subpoena requiring him to appear before the grand
jury the following day.
The government introduced recordings of several of Rosenberg's
phone conversations on the day he was served with the subpoena. In
those conversations, Rosenberg, again expressing a reluctance to
explain his purpose while on the phone, spoke with attorney Charles
Carnesi and arranged for Carnesi to contact a second attorney, Brian
Levinson. The calls suggested that Carnesi was to orchestrate -- in
Rosenberg's words, "lay out the groundwork" for -- Rosenberg's
appearance before the grand jury, while Levinson would accompany him
(Pet. App. 9a-10a; see id. at 81a). Carnesi had earlier represented
William Sewell before the grand jury. /3/ When interviewed by the
FBI, hours before speaking with Carnesi on the phone, Rosenberg
claimed that the only lawyers he knew were his brother-in-law and
Levinson (id. at 8a).
On the third day of the hearing, the trial court reexamined the
jurors individually in open court. During that voir dire, three
jurors expressed doubts about their ability to remain impartial (Pet.
App. 18a). Juror No. 4 reported that his father had seen a press
report of the hearing and had expressed concern to him about it; the
juror said that "at this point (I) don't know whether I can be
impartial" (id. at 43a-44a). /4/ Juror No. 8 admitted that he had
learned of the allegations of jury tampering. He stated that he could
not be impartial "on the subject of drugs based on immediate family
experiences involving my children and so forth" (id. at 18a-19a, 45a,
49a). Juror No. 12 stated that it would be difficult for her to be
impartial because she had "put pieces together" (id. at 19a, 51a-52a).
3. At the government's request, the judge withheld decision on what
course to follow until after the parties had had an opportunity to
file memoranda. On January 19, the government moved for a mistrial.
It argued that Juror No. 4, Juror No. 8, and Juror No. 12 had to be
excused, and it asked that the court make a finding that there was a
"manifest necessity" for a mistrial because the dismissal of those
jurors would leave too few jurors to proceed further and because
petitioners had tampered with the jury (Pet. App. 19a). Petitioners
filed a joint memorandum which agreed that "circumstances
'necessitated (the) dismissal' of Jurors 4, 8, and 12" (id. at 20a),
but opposed the findings sought by the government.
4. On January 21, the United States District Court for the Eastern
District of New York convened en banc to consider petitioners'
allegations that the United States Attorney, believing that the
government was losing at trial, had made charges of jury tampering to
force a mistrial (Pet. App. 20a). /5/ The court ordered the
government to produce the minutes of the grand jury, reviewed the
record of the proceedings before the trial judge, and heard oral
argument. The en banc court found that the grand jury proceedings
were bona fide, and that the United States Attorney had good reason to
bring the jury tampering allegations to the trial judge's attention
(id. at 20a-21a). The court also concluded that any publicity that
resulted from the government's application was not the fault of the
United States Attorney (id. at 21a). The court left to the trial
judge the questions whether and when to order a mistrial (ibid.).
5. The trial court declared a mistrial (Pet. App. 66a-87a). After
recounting the course of the proceedings before it, the court
indicated that it would apply the standard of proof set out in United
States v. Mastrangelo, 662 F.2d 946 (2d Cir. 1981), cert. denied, 456
U.S. 973 (1982). In that case, in which an essential witness had been
murdered on the way to court, the Second Circuit had stated that a
mistrial could be granted if the trial judge "reasonably concludes
that there is a distinct possibility that the defendant participated
in making the witness unavailable, at least * * * where the Government
is totally without fault and the case cannot proceed and the ends of
justice be served * * *" (Pet. App. 68a). In light of the "exigency
of determining whether to proceed with the trial and the obvious
constraints placed upon (its) ability to fully explore" allegations of
jury tampering at a short hearing, the trial court saw "no reason to
depart from the standard enunciated in Mastrangelo" (id. at 69a). It
also rejected petitioners' contention that the jurors' answers during
voir dire precluded a finding of jury tampering (id. at 70a).
The trial court adopted the en banc court's ruling on the question
whether the government had acted in bad faith in seeking a mistrial
(id. at 71a). It declined to make a determination concerning the
weight of the evidence of petitioners' guilt or innocence of the
crimes charged in the indictment, stating only that the severity of
the charges and the possible sentences they carried provided
petitioners with "ample motive to tamper with the jury" (id. at 72a).
Turning to the merits of the jury tampering issue, the court found
(id. at 72a):
Based upon the evidence adduced at the hearing and the
materials submitted by the Government, the Court finds that
there is a very high degree of likelihood that the panel sitting
on this case has to some extent been compromised as a result of
unlawful conduct circumstantially attributable to the
defendants.
The trial court next reviewed the evidence introduced at the
hearing, rejecting in detail various factual contentions advanced by
petitioners. Specifically, it found ex-juror Barnes to be "completely
trustworthy" (id. at 74a), rejected Rosenberg's account of his
relationship with Barnes and the tenor of their conversation (id. at
79a-80a), and found that it was "evident * * * that (Rosenberg) was
acting on behalf of Gene Gotti when he contacted Gary Barnes" (id. at
80a-81a). The trial court held that "there is a manifest necessity to
declare a mistrial in this case due to the defendants' efforts to
improperly identify and influence the jury" (id. at 81a-82a).
The trial court also found that there was manifest necessity for a
mistrial "because there is an insufficient number of jurors who can
deliberate fairly and impartially" (Pet. App. 82a). The court
explained that it believed the statements of Juror No. 4, Juror No. 8,
and Juror No. 12 that "they could no longer remain fair and impartial"
and that with their dismissal there remained an insufficient number of
jurors to proceed further (id. at 82a-83a).
6. Following the mistrial, the case was reassigned to Judge Joseph
M. McLaughlin. Petitioners moved for an order barring their retrial
on double jeopardy grounds. The district court denied that motion
(Pet. App. 881-143a). With respect to the jury tampering issue, the
court refused to "second-guess" the trial court's use of the
Mastrangelo standard and rejected various challenges to the trial
court's findings of fact (Pet. App. 114a-118a). It found the trial
court's finding that there had been "manifest necessity" for a
mistrial on this ground to be "fully justified" (id. at 118a).
Similarly, after reviewing the transcript of the voir dire, the
district court concluded that "(g)iving Judge Costantino's
determination the deference it deserves, (it could) perceive no abuse
of discretion in his conclusion that the jurors had now lost their
impartiality and had to be excused" (id. at 121a). The district court
also relied on the fact that the defendants "conceded as much in their
post-hearing memorandum," which "as a practical matter," left the
trial court "with no alternative but a mistrial" (id. at 121a, 122a).
The district court rejected contentions that the government or Judge
Costantino had been responsible for the circumstances leading up to
the mistrial (id. at 123a).
Finally, the district court rejected the argument of certain of the
petitioners, advanced for the first time in their separate memorandum,
that the trial court should have allowed the trial to continue with an
11-person jury and that allegations of misconduct directed at other
petitioners did not warrant a mistrial as to them (Pet. App.
124a-127a). The option of an 11-person jury was not available, the
district court explained, because Fed. R. Crim. P. 23(b) requires all
parties to stipulate in writing with the court's approval to a jury
with fewer than 12 members, none of the defendants had tendered or
even proposed such a stipulation, and the government was unlikely to
have joined one in any event (id. at 126a).
7. The court of appeals affirmed by a 2-1 vote (Pet. App. 1a-63a).
It upheld the trial court's use of the Mastrangelo standard,
explaining that its rationale -- "namely, to avoid a mini-trial which
could last weeks or months and maximize the risk of alerting the jury
to the allegations of misconduct" -- was applicable to allegations of
jury tampering (Pet. App. 27a). The court agreed with both district
judges that "the evidence did raise a 'distinct possibility' that
(petitioners) had identified several of the anonymous jurors and had
tried to influence one or more of them" (id. at 28a).
While characterizing the question as a "closer one," the majority
also held "that the (trial) court properly dismissed the three jurors,
especially when we weigh their responses to the court's questions in
light of the evidence of jury tampering" (id. at 29a-30a). Further,
it ruled that once those jurors were dismissed, the trial court could
properly find that a mistrial was necessary (id. at 31a-32a). Like
the district court, the court of appeals relied on the fact that none
of the petitioners had suggested that the case could proceed with
fewer than 12 jurors until after the jury had been discharged and that
the government would have been unwilling to agree to that course (id.
at 32a-33a). Finally, the majority rejected the claim that certain of
the petitioners, those not specifically charged with jury tampering,
were entitled to have their trial continue and also held that
petitioners' allegations of prosecutorial misconduct were not
sufficiently colorable to warrant a hearing on the prosecution's
motives (id. at 34a-35a).
Judge Lumbard dissented (Pet. App. 53a-63a). In his view, the
responses of Juror No. 4, Juror No. 8, and Juror No. 12 fell short of
providing a basis for disqualifying any of them (id. at 55a). It was
the trial court's duty, Judge Lumbard stated, to urge the jury "to
continue to serve and to consider the case solely on the evidence"
(id. at 55a, 58a). Judge Lumbard also criticized the trial judge's
decision to examine the jurors in open court (id. at 55a; see id. at
58a). While acknowledging that "it (was) doubtful whether the
defendants would have agreed" to proceed with an 11-person jury, he
also maintained that the trial judge had not taken "every reasonable
step" to continue the trial on that basis (id. at 62a). With respect
to the issue of jury tampering, Judge Lumbard concluded that there was
"no showing that any remaining member of the jury had been tainted or
even approached" (ibid.). The combination of these factors and "the
judge's remarks about his displeasure regarding the trial" led Judge
Lumbard to the conclusion that there "was no showing of 'manifest
necessity' to justify the declaration of a mistrial" (ibid.). /6/
ARGUMENT
The court of appeals found that there were two sufficient grounds
for a mistrial in this case -- a "very high degree of likelihood" of
jury tampering attributable to the petitioners and the need to excuse
three jurors who questioned their own impartiality. Both holdings
conform to this Court's prior decisions and the balance they strike
between a defendant's right to have his trial completed before a
single jury and "the public's interest in fair trials designed to end
in just judgments." Wade v. Hunter, 336 U.S. 684, 689 (1949).
Petitioners' challenges to the trial court's factual findings and its
decision to declare a mistrial do not raise any issue of general
importance requiring further review.
1. As all of the courts below acknowledged, a prosecutor "must
demonstrate 'manifest necessity' for a mistrial declared over the
objection of the defendant." Arizona v. Washington, 434 U.S. 497, 505
(1978). Although the government's burden under this standard "is a
heavy one" (ibid.), it must be applied in light of the particular
facts before the trial court (id. at 506). For that reason, the
application of the "manifest necessity" standard is committed, for the
most part, to the trial judge. "(T)he overriding interest in the
evenhanded administration of justice requires that (an appellate
court) accord the highest degree of respect to the trial judge's
evaluation of the likelihood" that one or more jurors' impartiality
has been affected by events in a trial (id. at 511).
It is difficult to imagine a circumstance that more clearly
justifies a mistrial than an attempt to tamper with a sitting jury.
Jury tampering denies the prosecutor his "one full and fair
opportunity to present his evidence to an impartial jury." Arizona v.
Washington, 434 U.S. at 505. The trial court found that there was "a
very high degree of likelihood that the panel sitting on this case has
to some extent been compromised as a result of unlawful conduct
circumstantially attributable to the defendants" (Pet. App. 72a).
That finding of fact was not "the bootstrapping of innuendo upon
suspicion" (Pet. 39). Rather, as both district judges who heard this
matter and the court of appeals found, it was based, inter alia, on:
(1) evidence that ex-juror Barnes had been approached by Rosenberg
who, acting on behalf of petitioner Gotti and believing that Barnes
was still on the jury, had offered him a BMW in return for information
about how the jury was "feeling" (Pet. App. 8a, 14a-17a, 78a-79a);
(2) proof that Rosenberg had attempted to conceal the purpose of his
approach to Barnes and had fabricated an account that misstated the
nature of his relationship with Barnes, the substance of their
conversation, and the seriousness of his intentions (see id. at 8a-9a,
18a, 79a-80a); and (3) information from confidential sources,
corroborated to a substantial extent, that petitioners had employed
private detectives to breach the anonymity of the jury and had
compromised at least one juror (id. at 6a-7a, 73a-74a). Against that
background, the trial court was not bound by the fact that no sitting
juror confirmed that he or she had been approached. As the court of
appeals observed, "it is not likely under the circumstances of this
case that a juror who had been approached would admit it in open
court" (Pet. App. 31a).
Petitioners also challenge the reliance of the courts below on the
Second Circuit's prior decision in United States v. Mastrangelo,
supra. They argue that the reasoning of that case is not applicable
here and that applying the Mastrangelo standard in this case
"eviscerate(s) the manifest necessity requirement" (Pet. 38-54). We
submit that Mastrangelo properly describes a trial court's discretion
to apply the "manifest necessity" standard in a particular category of
exceptional cases. As the Second Circuit explained, Mastrangelo
addresses the situation in which a trial judge faced with facts
tending to establish a fundamental assault on the fairness of a trial
cannot, as a practical matter, "reach any well-founded determination
about the true course of events in an hour, a day, a week, or even a
month." 662 F.2d at 951. In that situation, when a judge's discretion
to declare a mistrial must be exercised without extended factfinding,
he may act on the basis of a "distinct possibility" that the
fundamental fairness of the proceeding has been subverted by the
defendants, "at least where * * * the Government is totally without
fault" and "the ends of justice (would) be served" (id. at 952).
The circumstances justifying the use of the Mastrangelo standard
were all present in this case. Jury tampering is a direct assault on
the judicial process that requires an immediate response. It would
have been totally impracticable for the court to conduct plenary
hearings to resolve the questions raised by the government's evidence
while reserving the option of proceeding with the trial. As it was,
the trial was interrupted for nearly two weeks. Contrary to
petitioners' argument (Pet. 44-48), the fact that the government's
investigation of attempts to tamper with the jury had begun by October
and had not been completed by January did not make Mastrangelo's
analysis inapplicable. Once the government had investigated the
approach to ex-juror Barnes, which confirmed that efforts were being
made to influence the jury, it would have been inconsistent with the
government's responsibilities to the proper administration of justice
to withhold that information from the court. The court, in turn, was
entitled to act expeditiously, rather than to continue putting itself,
the witnesses, and the jurors through a trial that had been
irrevocably tainted. As in Mastrangelo, therefore, the "ends of
justice" compelled a prompt response. Finally, as the en banc
district court concluded, the government was "totally without fault"
in the matter.
There is no inconsistency between Mastrangelo and any decision of
this Court. The Court has repeatedly rejected the suggestion that
"manifest necessity" is a rigid standard, to be applied in accordance
with its dictionary definition (see Pet. 50-53). For instance, in
Arizona v. Washington, supra, this Court explained that, "contrary to
the teaching of Webster" (434 U.S. at 506),
those words ("manifest necessity") do not describe a standard
that can be applied mechanically or without attention to the
particular problem confronting the trial judge.
Accord Illinois v. Somerville, 410 U.S. 458, 462 (1973) ("manifest
necessity" standard "abjures the application of any mechanical formula
by which to judge the propriety of declaring a mistrial in the varying
and often unique situations arising during the course of a criminal
trial"). Moreover, the Court has emphasized that the principles
underlying the manifest necessity standard "command courts in
considering whether a trial should be terminated without judgment to
take 'all circumstances into account' and thereby forbid the
mechanical application of an abstract formula. The value of (these)
principles thus lies in their capacity for informed application under
widely different circumstances without injury to defendants or to the
public interest." Wade v. Hunter, 336 U.S. at 691. These principles
do not establish any precise standard of proof that was violated in
this case.
The decisions of the courts below respect the balance of values
underlying the "manifest necessity" standard. "(A) defendant's valued
right to have his trial completed by a particular tribunal must in
some instances be subordinated to the public's interest in fair trials
designed to end in just judgments." Wade v. Hunter, 336 U.S. at 689.
When there is a "high likelihood" or "distinct possibility" that the
factfinder has been compromised, as was shown in this case, the
public's interest in a fair trial justifies terminating the first
proceeding and starting anew.
Apart from the merits, there are several persuasive reasons why
this case does not warrant further review. Contrary to petitioners'
suggestion that the "distinct possibility" standard threatens to
become "a matter of general application" (Pet. 49), it apparently has
been applied only three times in this decade -- all in the Second
Circuit. /7/ Those cases were truly extraordinary; they involved,
respectively, the murder of a government witness on his way to court,
a death threat that led a witness to refuse to testify even after he
was jailed for contempt, and an attempt to tamper with a sitting jury.
To our knowledge, no other court has ever questioned Mastrangelo's
reasoning or its application to these kinds of exceptional
circumstances. Since the Second Circuit has applied the Mastrangelo
standard only in extraordinary cases involving direct attacks on the
administration of justice, there is no need for this Court to address
the hypothetical question whether that standard should be applied more
broadly. Indeed, even if a "distinct possibility" of jury tampering
is insufficient to justify mistrial, the finding in this case -- that
there was a "very high degree of likelihood that the (jury) sitting on
this case has to some extent been compromised as a result of unlawful
conduct circumstantially attributable to the defendants" (Pet. App.
72a) -- met an even higher standard that is consistent with any
reasonable view of "manifest necessity."
2. Even if this Court concluded that the existence of jury
tampering was not sufficient to justify a mistrial in this case, there
is an alternative ground that supports the decision below -- the
finding that three jurors had to be excused because their impartiality
was in doubt and the trial could not continue with fewer than 12
jurors. The court of appeals held that the district court "properly
dismissed" the three jurors who expressed doubts about their
impartiality and that "it properly could find that a mistrial was
necessary from the number of jurors remaining" (Pet. App. 29a,
31a-32a). That finding, which would justify petitioners' retrial
regardless of any disposition of the jury tampering matter, is
factbound and plainly unworthy of further review in this Court.
All three of the jurors in question expressed doubt about their
ability to act impartially. The trial court heard them personally and
was in the best position to evaluate the depth of their misgivings.
Under these circumstances, the "compelling institutional
considerations militating in favor of appellate deference to the trial
judge's evaluation of the significance of possible juror bias" are
fully applicable. Arizona v. Washington, 434 U.S. at 513-514. As
this Court explained there (ibid.):
(The trial judge) has seen and heard the jurors during their
voir dire examination. He is the judge most familiar with the
evidence and the background of the case on trial. * * * In
short, he is far more "conversant with the factors relevant to
the determination" than any reviewing court can possibly be.
See Wade v. Hunter, 336 U.S. 684, 687.
Accord Gori v. United States, 367 U.S. 364, 368 (1961) (trial judge
is "best situated intelligently to" consider whether circumstances
require a mistrial). These principles preclude second-guessing the
trial court in this case. While Judge Lumbard expressed the view that
"obviously uneasy jurors" might view the voir dire as a "way out"
(Pet. App. 59a-60a), it was just as likely that the jurors might
understate their concerns. They had taken an oath to be impartial
and, after more than seven months of trial, might well have believed
that they would be criticized for expressing doubts about their
ability to continue. Juror No. 4 in particular could well have been
reluctant to elaborate fully on his family members' feeling that, if
their identities were known, they would be "in a certain amount of
danger" (Gov't C.A. App. 161). The trial judge was the only one to
observe the jurors and was best situated to interpret their responses.
His judgment is entitled to great deference.
Nor is there support in the record for the suggestion that the
jurors' responses were the product of being examined in open court.
Although both parties suggested conducting their voir dire in
chambers, the trial court was under no duty to do so. The transcript
of the voir dire does not suggest that any juror was intimidated by
the public nature of the proceedings or would have answered any
differently in chambers than he or she did in open court.
In this Court, petitioners contend that the trial court failed to
explore adequately alternatives to excusing the three jurors and
declaring a mistrial. However, in the trial court, petitioners
specifically requested that those jurors be excused and thereby
abandoned other possible alternatives. After examining the jurors for
the second time, the court withheld decision until after receiving
submissions from both sides. In the conclusion of their joint
memorandum (C.A. Jt. App. A344), petitioners stated, "Jurors 4, 8, and
12 should be excused." /8/ Even though it was obvious that this relief
would reduce the jury to only 11 members, petitioners nowhere
suggested that they would be willing to go forward with fewer than 12
jurors. Indeed, given the facts that this alternative could not have
been chosen without the government's consent and that the government
was seeking a mistrial on the ground of jury tampering, it would not
have been a violation of petitioners' rights to reject that course
even if petitioners had proposed it. Petitioners cannot now claim
that the district court abused its discretion by failing to take steps
that they themselves chose not to request. /9/
Nor is there any merit to the suggestion in the petition, based on
isolated excerpts from the transcript, that the trial judge acted
precipitously or from personal motives. See Pet. 17. /10/ As the
record reflects, the judge conducted a three-day hearing into the
issue of jury tampering. He carefully examined the jury twice in
terms that were calculated to uncover possible bias while preserving
its neutrality if possible. He discharged the three jurors in
question and declared a mistrial only after receiving written
submissions from both sides. His findings of fact were thorough and
his decision was justified with specific reference to the requirement
of "manifest necessity" (Pet. App. 81a-83a). Nothing in this record
suggests that the trial judge acted "irrationally or irresponsibly."
Arizona v. Washington, 434 U.S. at 514.
3. Finally, petitioners rely heavily on Judge Lumbard's dissenting
opinion (Pet. 31-37). He would have held that the government did not
establish "manifest necessity" for a mistrial, believing that there
was no showing that any sitting member of the jury had been approached
improperly, and that the trial judge mishandled the voir dire and
failed adequately to investigate alternatives to a mistrial. For
present purposes, however, the important point is that the dissenting
judge's disagreement with the majority was not on the merits of the
legal standards applied by either of the district judges or the court
of appeals. Rather, it was over the application of those standards to
the particular facts of this case. The fact that this case presented
close questions below, as the majority acknowledged (Pet. App. 29a),
is not enough to justify further review.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
CHARLES FRIED
Solicitor General
EDWARD S. G. DENNIS, JR.
Assistant Attorney General
THOMAS E. BOOTH
Attorney
OCTOBER 1988
/1/ Jury selection had begun in April. In order to protect the
members of the venire and the jurors who were eventually seated,
neither the prosecution nor the defense was advised of their
identities.
/2/ On one occasion, Barnes saw Sewell speaking with petitioner
Gotti's attorney (Gov't C.A. App. 62, 127-128).
/3/ Sewell had discussed his subpoena with petitioner Ruggiero at
the Metropolitan Correctional Center, while Carnesi was present (C.A.
Jt. App. A230-A235). When interviewed by the FBI, Rosenberg denied
knowing Sewell (Gov't C.A. App. 151-152).
/4/ That juror had previously asked to see the judge and had
volunteered that his father had recounted press reports of the trial
and "got very nervous when he heard that the defendants might know who
we are" (Gov't C.A. App. 161). Juror No. 4 also said that his mother
had the "same attitude" and that both his parents were "panicked"
(ibid.). He also said that he felt "that if our anonymity has been
broached (sic) we are in a certain amount of danger, and whether or
not that would affect my decision I don't know. * * * Personally it
wouldn't bother me. Again, I have a family, and I live right in the
neighborhood where most of these things happened" (ibid.).
/5/ Petitioners had raised these allegations in proceedings before
Judge Costantino, and counsel for petitioner Gotti had repeated them
in a television interview before the jury was sequestered (Gov't C.A.
Br. 13).
/6/ Petitioners Ruggiero, Carneglia, and Gotti were retried earlier
this year, but their trial ended in a mistrial after the jury was
unable to reach a verdict. Retrials for all petitioners are scheduled
for early next year.
/7/ In addition to Mastrangelo and this case, in United States v.
Khait, 643 F. Supp. 605 (S.D.N.Y. 1986), the government's principal
witness refused to testify when his wife received a death threat on
the eve of trial. A jury was sworn so that the witness could be held
in contempt. When he persisted in refusing to testify, the judge
released him and held, relying on Mastrangelo, that the defendant
could be retried.
/8/ Petitioners joined this request with an argument that the
jurors' inability to serve further was the result of misconduct by the
judge and the government, saying that if the dismissal of the jurors
led to a mistrial, a retrial would be barred (C.A. Jt. App.
A336-A343). Their objective was obviously to have the best of both
worlds -- to put themselves in a position to argue, if the judge chose
not to dismiss the jurors, that they had objected to their presence on
the jury, while preserving at the same time the contention that they
were not parties to a request for a mistrial. Even accepting the
proposition that petitioners could both seek the dismissal of the
jurors and contend that a mistrial necessitated thereby was "over
their objection" for purposes of their double jeopardy arguments,
petitioners cannot now be heard to argue that the trial judge erred by
failing to consider alternatives that they did not advocate.
/9/ The petition asserts that "the defense asked Judge Costantino
to resolve by curative instructions the unease of the jurors * * *
about their continued ability to serve," including telling them about
the "cost of a re-trial to all parties" (Pet. 25). There is no
citation supporting this statement, and it completely mischaracterizes
two brief and ambiguous interjections by one attorney -- "(i)t is
something (that can be) cure(d)" and "If you can cure it * * *" --
during a colloquy on whether one juror (No. 12) should be further
examined (C.A. Jt. App. A297-A298). Immediately thereafter, the trial
court acquiesced in the government's request for an opportunity to
file a memorandum before the court acted. Petitioners' lengthy
memorandum nowhere mentioned the possibility of curative instructions
and expressly consented to dismissal of all three jurors (id. at
A301-A344). See also Arizona v. Washington, 434 U.S. at 511 (trial
judge has discretion to decline to give cautionary instruction).
/10/ This lengthy trial was unusually rancorous. In an earlier
decision upholding petitioner Ruggiero's citation for contempt arising
from a courtroom outburst, the Second Circuit described it as a "tense
and volatile multi-defendant criminal trial, in which the district
court had been forced on other occasions to warn the defendants to
stop interrupting witnesses, using foul language, or otherwise showing
their disrespect for the proceedings." United States v. Ruggiero, 835
F.2d 443, 444-445 (2d Cir. 1987). In any event, the issue is whether
the record reflects a diligent effort by the trial judge to apply the
"manifest necessity" standard to the particular facts before him, with
due regard for the values it reflects. Nothing in the excerpts
marshaled by petitioners suggests that he did not.